The discussion about loot boxes (prize boxes) has been taking place in several countries for some years and finally arrived in Brazil, through an action filed by the National Association of Child and Adolescent Defense Centers (ANCED) against developer and host companies of games.
Loot boxes are mechanisms that exist in several video games and consist of boxes that can be opened by the player - using points he has already won in the game - to earn special items. There is an immense variety of how this mechanism works in each game, but that is the idea common to all of them. The existence of this device is not new; what has changed in the last few years has been the possibility for players to buy the points or credits of the game with real money in order to open a larger number of prize boxes.
The debate that has taken place worldwide and, apparently, is brought up by ANCED is that this mechanism would constitute a kind of game of chance, since the player does not know exactly what he will win when he uses the credits bought with real money. As can be seen, according to this thesis there are two elements that would characterize loot boxes as games of chance and, therefore, as a prohibited activity: the randomness of rewards and the use of real money.
The answer to the dilemma, however, is not so simple and the conclusion that ANCED seems to reach may not always be true. It is impossible to generalize all video games and provide a universal solution for all of them, as each game has its own model of loot box, a tool whose form of use varies widely. To conclude if there is a game of chance, it is essential to analyze each mechanism, paying attention to its context and peculiarities.
This is because the characterization of the activity as a game of chance by Brazilian law depends on the presence of 3 requirements: (i) prize; (ii) preponderance of luck; and (iii) betting on a good. Under the terms of art. 50, §3, of the Criminal Misdemeanor Law, the result of the game must be mainly due to luck. It turns out that the three requirements are not always identified in the video game loot box.
Take, for example, the acclaimed game Counter-Strike: Global Offensive, played by more than twenty million people worldwide. Players win loot boxes as a result of demonstrating skills or under certain specific conditions. The boxes contain a random prize, which is a skin (a type of decorative stickers) to be used by the player. These skins can also be purchased in the store of the company that owns the game, as well as can be purchased from other players. Therefore, they have real and specific values. Thus, the opening of the loot box can give a prize of varying values to the player. The opening of these prize boxes depends on the payment of real money for the game.
At first glance, it can be said that there would be a game of chance and that the loot boxes would be the same as slot machines, as there is a cash payment for the attempt to win a prize awarded at random. However, the reality is not quite that.
On the one hand, there is no prospect of the player simply paying to open the box and not receiving anything. His money will necessarily correspond to a product, varying only the value of that item. This is the same situation as collectible card games and football album stickers, in which you buy a set of cards or stickers, but without knowing exactly which ones are being purchased - there is a difference in the values of each sticker due to its rarity. It is clear that this is not a game of chance and that the situation is different from slot machines, in which the player can lose everything with a bet.
On the other hand, the player also does not need to put real money in the game, as he also gains skins during the game, which can be traded and generate credits in his virtual account. That way, he can use those credits to open the boxes, without ever putting a penny of real money into the game. Therefore, it is not necessary to bet a good (real money) to open the boxes, mischaracterizing the activity as a game of chance.
This example shows us that the discussion regarding the characterization of loot boxes is not simple and cannot be answered in a unique way, and there must be an analysis of the mechanism of each game, under penalty of trivializing the concept of gambling in Brazil and to make the type provided for in the Criminal Misdemeanor Law more flexible.
Ricardo de Paula Feijó
Master in State law at the Federal University of Paraná, with research focused on the regulation of games of chance. Lawyer at Vernalha Pereira Advogados.
